R v Komljenovic [2006] VSCA 136

Mr S. Carisbrooke, Acting Solicitor for Public Prosecutions

1 On 23 November 2004 the applicant, Drago Komljenovic, who is now aged 51, was convicted by a jury in the County Court at Melbourne on one count of trafficking in heroin between 13 June 2002 and 9 August 2002 (count 1) and one count of trafficking in cannabis L between 27 March 2002 and 9 August 2002 (count 5). On 2 December 2004 the trial judge sentenced the applicant to five years' imprisonment on count 1 and two years' imprisonment on count 5. The judge ordered that one year of the sentence imposed on count 5 be served cumulatively upon the sentence imposed on count 1 making a total effective sentence of six years' imprisonment. His Honour ordered that the applicant serve a minimum term of four years before becoming eligible for parole. His Honour declared, pursuant to s.18 of the Sentencing Act 1991, that the applicant had already served 186 days of the sentence which he had imposed.

2 The applicant admitted a number of previous convictions including convictions for possession of a drug of dependence in 1986, in respect of which he was sentenced to six months' imprisonment, and two counts of trafficking in heroin in February 1993, for which the applicant was sentenced to ten years' imprisonment with a non-parole period of eight years.

3 In December 2001 the applicant leased premises at 9 Poplar Street, Box Hill ("the Box Hill premises") telling the landlord that he was arranging accommodation for his niece, Leigh Danielle Clayton, to enable her to attend the nearby TAFE college. In fact, Ms Clayton was the applicant's girlfriend. At all material times the applicant and Ms Clayton lived at the Box Hill premises from which they sold, as part of a joint enterprise, cannabis to numerous people who attended there for that purpose. During the period in question, the applicant also sold heroin. As will be explained, the Crown did not allege that the heroin sales by the applicant were part of a joint enterprise with Ms Clayton. As part of its case, the prosecution adduced evidence, in the form of video film, of movements, between 27 March and 11 April 2002, of persons entering and departing through the front of the Box Hill premises and their movements along the driveway. Similarly, the Crown adduced evidence of intercepted telephone discussions by, amongst others, the applicant and a known drug dealer, Peter Poulopoulos, that concerned the sale of drugs by the applicant.

4 The prosecution also alleged that the applicant trafficked in methylamphetamine as part of the joint enterprise with Clayton. This was the subject of count 4 on the presentment. The jury returned a verdict of not guilty on that count.

5 The Crown led evidence to establish that, on 13 and 20 June, Mr Poulopoulos sold heroin to a covert operative which he obtained from the applicant in order to complete the sale. In each case, after the operative had paid Mr Poulopoulos for the heroin he had ordered - $2,500 and $5,000 respectively - Mr Poulopoulos contacted the applicant and, after meeting with him, returned to provide the operative with the heroin. The quantity of the drug involved was, in the first transaction, approximately 6 grams and, in respect of the second, approximately 13 grams. The supply of heroin by the applicant to Mr Poulopoulos on 13 June was the subject of count 2 which was treated as an alternative to count 1, and the transaction of 20 June was the subject of count 3, which was also an alternative to count 1.

6 On 9 August 2002 investigating officers raided the Box Hill premises. The applicant and Ms Clayton were asleep in the main bedroom of the house and a search of it revealed substantial sums of cash located in various places, five mobile phones, 35 SIM cards, cannabis in various locations, a number of scales and a marquis test kit used for determining the presence of opiates or amphetamines. In a shed at the rear of the premises the police found a blue tray containing syringes and a spoon. Two of the digital scales seized from the main bedroom were found to contain traces of three drugs, namely diacetylmorphine, tetrahydrocannabinol and methylamphetamine. A glass jar located on the premises was found to contain LSD, it being alleged by the prosecution that it was in the possession of the applicant. This was the subject of count 6 in respect of which the jury returned a verdict of not guilty.

7 We now turn to consider the grounds on which the applicant relied in support of his application for leave to appeal against conviction.

Ground 1: Evidence of the "Louey incident"

8 In its case against the applicant for heroin trafficking, the prosecution relied upon events on 13 July 2002 when one Michael Louey, in the company of a male and a female attended the Box Hill premises and left there after about five minutes. Louey's vehicle was intercepted shortly thereafter by police. A search of the car revealed that a quantity of cannabis, wrapped in a tissue, was secreted behind the front passenger seat. Louey was also searched and was found to be in possession of heroin wrapped in a small silver foil ("the Louey incident"). Surveillance of the Box Hill premises on that day, however, did not reveal the applicant's presence when Louey attended there. It is necessary to mention at this point that, although the prosecution case was that, at all material times, the applicant was in a joint enterprise with Ms Clayton in relation to trafficking in cannabis and amphetamines, it did not allege that he was acting jointly with her in trafficking heroin. The reasons for this distinction are not apparent from a perusal of the transcript, nor was any explanation for it proffered during the course of the appeal. The trial judge, however, seems not to have been aware of this distinction in the Crown case until the second day of the charge. When his Honour was appraised of this position, given that there was no evidence that the applicant was present at the Box Hill premises when Louey arrived there, he directed the jury that the evidence of the events involving Louey could not be relied upon by the prosecution in support of the heroin trafficking counts and that they were to disregard it.

9 The evidence of the Louey incident was led against the objection of the applicant's trial counsel and ground 1 alleges that his Honour erred in permitting the Crown to lead it. As we have said, this evidence was admitted on the false premise that the Crown case on count 1 was that the applicant and Ms Clayton were acting pursuant to a joint enterprise in the trafficking of heroin. The learned trial judge, however, instructed the jury, in unexceptionable terms, that the evidence of the Louey incident could not be used to support counts 1, 2 or 3. As has been mentioned, the jury were told, in terms, that they could not rely upon the Louey incident at all in relation to the heroin counts as there was no evidence that the applicant was at the Box Hill premises at the time of that incident. The learned trial judge explained that even if Louey had obtained the heroin from the house, it could not be linked to the applicant as the Crown did not contend that he was acting jointly with Ms Clayton in relation to trafficking in heroin. No exception was taken to this direction and no application was made for the jury's discharge. Importantly, no reason was advanced on the appeal why it should be thought that his Honour's direction on that issue was insufficient. We consider that, in the circumstances, there is no relevant risk that a miscarriage of justice occurred by reason of the admission of the evidence of the Louey incident. Consequently, ground 1 is not made out.

Ground 2: Misdirection as to joint enterprise

10 Ground 2 alleges error by the learned trial judge in his direction concerning the alleged "joint enterprise". This contention was faintly pressed in the course of argument. We can detect no error in the manner in which his Honour explained the principle of joint enterprise to the jury. Counsel in oral argument sought to link grounds 1 and 2 contending that the jury would have been confused by the trial judge's redirections. It was submitted that his Honour having withdrawn the Louey incident and joint enterprise from the jury's consideration in relation to count 1, should have summarised the Crown case as it then stood in relation to count 1. We consider the nature and sufficiency of the evidence adduced by the Crown when we deal with ground 12. We think, however, that his Honour made plain to the jury the final basis of the Crown case in relation to count 1. The argument that the jury may have been left in a state of confusion cannot be sustained.

Ground 3: The learned trial judge erred in allowing the Crown to lead the evidence of consciousness of guilt

11 The applicant's record of interview shows that Q22 and his answer to it were as follows:

"Q22: Whereabouts are you residing?

A: 1 St John's Court, Narre Warren."

The prosecutor sought to rely on this exchange as showing that the applicant had lied in answer to the question and that he did so out of consciousness of guilt. It was said that the answer was a deliberate lie by which the applicant sought, for obvious reasons, to distance himself from his association with the Box Hill premises, where the prosecution alleged drug dealings had taken place during the relevant period. When the prosecutor told his Honour of this proposed course, the applicant's counsel objected to it on the basis that the evidence was not capable of demonstrating a lie or consciousness of guilt on the applicant's part. His Honour, however, ruled in the prosecutor's favour and, in his directions, told the jury that, if they were satisfied that the answer was a deliberate lie they could regard it as having been told out of consciousness of guilt on the part of the applicant, but only in respect of counts 4, 5 and 6. As we have said, the applicant was found not guilty in respect of counts 4 and 6.

12 It is convenient briefly to refer to his Honour's charge in that respect. As we have noted, the learned trial judge made it plain to the jury that the Crown's contentions about consciousness of guilt could only be considered by them in relation to counts 4, 5 and 6. The judge told the jury that it was alleged that, at the police interview, the applicant knew that the questions related to the Box Hill premises but, in order to distance himself from them, he effectively said, falsely, that he did not live there. The learned judge emphasised that before they could accept this aspect of the Crown case, they had to be satisfied beyond reasonable doubt, amongst other matters, that what the applicant relevantly said was a deliberate lie and that it related to a material issue, namely, a matter connected with the alleged offence. The judge then said:

"Most importantly, you have to be satisfied beyond reasonable doubt that that lie was told in circumstances in which the only reasonable explanation for the lie is that he knew that the truth of the matter about which he lied, the truth of where he lived, would implicate him in those offences. That is counts 4, 5 and 6."

13 His Honour also told the jury that it was for the Crown to exclude beyond reasonable doubt any other explanation for the impugned answer and, unless they were so satisfied, they could not regard the lie as an admission of guilt or consciousness of guilt of the three counts in question. The applicant's experienced trial counsel did not take an exception to that aspect of his Honour's charge although, as we have noted, she had contended unsuccessfully that the answer could not be regarded as amounting to a lie or consciousness of guilt.

14 Thus, the real issue in the appeal was whether the impugned question was capable of being regarded by the jury as a lie and, if so, as demonstrating consciousness of guilt by the applicant in respect of the relevant offences charged.

15 Mr Boyce, for the applicant, contended before us that the issue of consciousness of guilt should not have been left to the jury because they could not conclude from that exchange in the record of interview that the applicant was telling a deliberate untruth as to where he was residing. Counsel said that the filmed surveillance evidence was limited to daylight hours because the video could not record, at night, movements at the front of the Box Hill premises. It was also said that a person can have two residences and, in the course of his argument, Mr Boyce directed our attention to the dictionary definitions of "premises".

16 We think it was open to the jury to conclude that, in the context in which the question was asked and answered, both the questioner and the applicant were dealing with the topic of where he lived at that time. The jury would not have considered that the policeman and the applicant were engaged in a semantic analysis of where the applicant resided within the meaning of that term in revenue[1] (or property) law. Rather, both parties would have taken the question to have been directed to ascertaining where the applicant lived at the relevant time, he having earlier said that his "address" was 1 St John's Court, Narre Warren. That the applicant must have realised that the police were enquiring if he lived at the Box Hill premises is apparent, given that, as we have said, he had stated his "address" very early in the record of interview and, in the immediately preceding question, Q21, it was made obvious why he was being asked if he "resided" at the Box Hill premises. That question and answer were in this form:

"Q21: I'm gonna ask you some questions in relation to the trafficking in a drug of dependence, namely heroin, amphetamine and cannabis. Are you currently residing at 9 Poplar Street, Box Hill?

A: No."

Thus, as we have said, the applicant must have been aware that Q22 was concerned with his relationship with the Box Hill premises, more particularly, whether he lived there at the relevant time.

17 And the evidence on this issue was such that it was also well open to the jury to conclude that the applicant had made his home, or lived, at the Box Hill premises and that he well knew that to be the case. For instance, the evidence of the landlord was that it was the applicant who negotiated the lease and that he paid, in cash, the $1,800 bond as well as a month's rent (of $900) in advance. The landlord explained that he was approached by the applicant, who was then accompanied by Ms Clayton, and asked if the house was available for rent, saying that he intended to "[set] up the place for them to stay there". The landlord further said that the applicant was "keen to go in and wasn't particularly fussed" about a written lease and that they moved in "within the next couple of days" after paying the bond and the rent. The landlord also gave evidence that he was required to attend the Box Hill premises during the relevant period to carry out maintenance work and that, on a couple of occasions, he saw the applicant and Ms Clayton there.

18 There was other evidence relating to the applicant's occupancy of the Box Hill premises during the relevant period. The description of the premises by police who executed the search warrant there on 9 August 2002 made it apparent that the house was furnished and otherwise decorated as a domestic dwelling. Moreover, when they entered the house, the applicant was in bed with Ms Clayton in the front bedroom. We mention for completeness that, apart from the respondent's impugned answer in his earlier statement in the record of interview that his "address" was 1 St John's Court, Narre Warren, and that his licence apparently showed that place as his address, there was no evidence that the applicant lived in Narre Warren at the relevant time.

19 In the circumstances, we think that it was well open to the jury to conclude that the applicant would have understood that, in Q20, "residence" was not used in any technical or legal sense, but rather as a reference to the place where he was then living and that his answer in response to it was untrue. It was also open to the jury to conclude that the applicant told this untruth deliberately, in order to make it appear that he had no relevant connection with the Box Hill premises and thus, the drug trafficking that was said to have been conducted there.

20 In the circumstances, we think that ground 3 should fail.

Ground 4: Evidence of Andrew Murphy

21 Ground 4 alleges that the learned trial judge erred in his direction to the jury regarding the evidence of Andrew Murphy. He testified that he attended at the Box Hill premises on numerous occasions and purchased cannabis from the applicant or Ms Clayton. He also said that he had obtained amphetamines from Ms Clayton at those premises on two occasions. Murphy had prior convictions for dishonesty and was a heroin addict and had received indemnity from the Director of Public Prosecutions in respect of his participation in the unlawful transaction. Thus, the jury were warned by the trial judge to examine his evidence with care. They were also told by his Honour that it would be wise to consider whether his account was supported by other evidence before acting on it. No exception was taken to this direction nor was a re-direction sought. Little was said in oral argument before us to advance the contention that his Honour's direction was deficient. In our view the direction which his Honour gave adequately drew the jury's attention to the manner in which this witness's evidence should have been evaluated. There is no merit in this ground.

Grounds 5, 6 and 7: Evidence of telephone calls

22 These grounds allege that the learned trial judge erred in admitting into evidence various telephone calls involving the applicant and Mr Poulopoulos (ground 5), telephone calls between Ms Clayton and various persons when the applicant was not present (ground 6) and telephone calls between Mr Poulopoulos and other persons when the applicant was not present (ground 7).

23 In relation to the conversations the subject of grounds 5 and 7, counsel for the applicant, despite an acknowledgment that they were "devoid of content", submitted that they were prejudicial because the jury were likely to treat them as demonstrating some form of propensity, either by the applicant, Ms Clayton or Mr Poulopoulos. These grounds were all but abandoned during the course of oral submissions. The learned trial judge admitted the evidence of conversations of Mr Poulopoulos with others as probative of whether Mr Poulopoulos was a person who was involved in the selling of heroin both before and after the dates specified in the counts, so rendering it more probable that he was a purchaser and seller of heroin on 13 and 20 June 2002.

24 The telephone conversations involving Ms Clayton and other persons were only relevant to count 5. The jury had been expressly directed that the doctrine of joint enterprise or common purpose did not apply to count 1. His Honour proceeded upon the assumption, which in our view was fully justified, that there was ample material which demonstrated that the applicant and Ms Clayton were trafficking in cannabis pursuant to a joint enterprise. The objection taken to the admission of these conversations was that they were largely irrelevant or ambiguous. In our view, these conversations, when viewed collectively, constituted evidence which was capable of supporting the conclusion that Ms Clayton was involved in drug trafficking pursuant to an underlying agreement with the applicant. It was a matter for the jury to determine whether the conversations whether viewed in isolation or in conjunction with other evidence could support such a conclusion. We can see no error in the approach adopted by his Honour. Such evidence was part of the material upon which the Crown was entitled to rely in support of count 5. There is in our view no substance in grounds 5, 6 and 7.

Ground 8: Evidence of meaning of terms used in conversations

25 Ground 8 alleges that the learned trial judge erred in permitting the prosecution to lead evidence from the informant as to the meaning of certain terms used in the conversations recorded in telephone intercepts. Like grounds 5, 6 and 7 this ground was but faintly pressed. The informant had testified that some of the expressions which appeared in the recorded conversations sometimes bore a particular meaning when used within the drug trade. The witness did not assert that they bore a particular meaning in any particular conversation, the question as to the meaning of such terms being a matter for the jury. It is not uncommon for evidence of that nature to be proffered in drug trials.[2] This ground is without substance.

Ground 12- Unsafe and unsatisfactory and against the evidence and the weight of evidence

26 Finally, the applicant was given leave to amend the grounds of appeal by adding as ground 12 that the verdict of guilty on count 1 was unsafe and unsatisfactory and against the evidence and the weight of evidence. As the applicant would have it, given the judge's direction that the evidence concerning Louey was inadmissible in proof of count 1, and that it was not part of the Crown case that Ms Clayton was involved the trafficking in heroin the subject of count 1, the verdict on count 1 could not be sustained. In particular, the applicant says, once one excludes the evidence about Louey, and deals with Ms Clayton separately, the only proof that he trafficked in heroin on a regular and continuous basis was that the search of the Box Hill premises revealed traces of heroin on a set of scales located in the bedroom where the applicant was found sleeping; intercepts of telephone conversations which, arguably, in many cases, are concerned only with dealings in cannabis and in some cases possibly with cannabis or heroin, but with no sure way of saying which; and just two individual heroin deals of 13 June 2002 and 20 June 2002. According to the applicant, that is simply not enough evidence from which to conclude beyond reasonable doubt that the applicant was engaged in a continuous activity of a commercial and systematic kind in relation to heroin during the whole or part of the period between 13 June 2002 and 9 August 2002.

27 This argument is similar to one which was rejected in Giretti.[3] The offenders there were jointly presented for trial on five counts. Counts 1 and 2 charged each offender with trafficking in heroin between 1 July 1982 and 31 December 1982 and between 1 February 1983 and 17 December 1983, respectively. Counts 3 and 4 charged each offender with trafficking in heroin between 18 December 1983 and 26 April 1985 respectively. Count 5 charged the first-named offender alone with trafficking in heroin between 26 April 1985 and 16 July 1985. He argued that, because the only evidence in support of count 5 was of two single acts of trafficking, which were isolated and occurred during a period of almost three months, it was not open to the jury to conclude that he was engaged in trafficking in heroin on a continuing basis during the latter period. The majority of the court rejected the argument. They held that it was open to the jury to use the evidence of the manner in which the trade had been carried on for the preceding two and a quarter years as evidence applicable to count 5, in order to supply the context in which the two particular specific acts of trafficking occurred. On that basis, it was open to the jury to find that they were not isolated acts but part of a regular on-going trade in the supply of heroin.[4]

28 In our view, similar reasoning applies in this case. The trial judge left the facts to the jury for their consideration, as follows:

"So you were asked [by the Crown] to find that, in all the circumstances as they have been laid out before you in the evidence and analysed by counsel, the only reasonable inference is that [the applicant] was engaged in a business as defined, and that is a matter you have to decide in respect of Count 1, which relates to heroin, in respect of Count 4, which relates to amphetamines and in respect of Count 5, which relates to cannabis. You may find he was in a business that involved all of those things. You may find he was not carrying on business at all. You may find he was carrying on a business that involved one, but not that one, and so on. Those are matters entirely for you."[5]

As we see it, the jury may well have reached the conclusion that the applicant was engaged in a mixed business that "involved all those things". In our view it was open to the jury to use the evidence of the applicant's involvement in trafficking in cannabis and other drugs in order to supply the context in which the two individual heroin deals of 13 June 2002 and 20 June 2002 took place and thus to conclude that the two individual heroin deals were but part of a regular on-going trade in drugs of a number of kinds.

29 One possible construction of Giretti is that there must be regular on-going sales in a particular drug before it can be found that there is trafficking in that drug. If that were so, it would not be enough to show a succession of individual sales of drugs of different kinds. But in our view it would be erroneous to confine Giretti in that fashion. On its facts Giretti was concerned with a drug dealer who carried on a trade in only one kind of drug (in that case, heroin). What the majority said about the necessity for the repetition of sales of that one drug was, therefore, directed to that context. But in point of principle the notion of trafficking constituted of regular and repetitive trade is as apposite to those who deal in a diversity of drugs as it is to one-drug specialists. Individual trades in particular kinds of drugs may be relatively isolated and yet still comprise part of a dealer's continuing trade in drugs of several kinds. As a matter of principle, a dealer may be said to traffick in each of the drugs in which he deals in the usual and ordinary course of his trade, no matter that the frequency and volume of sales in some lines may greatly exceed some others.

30 The situation is analogous to that of a shopkeeper who carries on the business of a general store. The bulk of his turnover may be in lines, such as milk and groceries and tobacco, which he sells most days. A small percentage of his turnover may be in lines - for example, clothes or tools - which he may keep on hand or perhaps get in as the occasion requires, for the occasional odd sale. But the fact that the shopkeeper is in business to sell all of the goods which he carries or gets in as the case requires means that each of his sales is a part of a regular and repetitive pattern of trade in the general store business. It follows that the subject matter of each of his sales is something in which he can properly be said to carry on trade.

31 Logic and common sense imply that it is the same with drug dealers. If a drug dealer sets himself up in a mixed drug dealing business, there may be some drugs, such as cannabis and amphetamines, which comprise the bulk of his turnover and there may be other drugs, such as heroin and cocaine, of which he may make only an odd sale every now and again. But the fact that he is in business to sell all of the drugs which he carries or is prepared to get in for sale means that each sale, cannabis, amphetamines and heroin and cocaine alike, is part of the regular and repetitive pattern of trade of his mixed drug business and therefore that he can properly be said to carry on trade or to traffick in each of them.

32 It is possible to suppose that a drug dealer who has been in the business of dealing in a number of drugs might cease to deal in one of them - such as heroin - in order to concentrate on the other drugs in which he deals. In that event, one could not say that the dealer was any longer trafficking in heroin, even though of course he would still be carrying on a mixed business of trafficking in the other drugs. But in such a case it would be a question of fact for the jury as to whether an apparent gap in sales in the particular drug in question meant that the dealer had really determined no longer to deal in that drug, as opposed simply to sales being slow, and of course if it were only the latter the dealer would remain liable for trafficking despite the low volume of sales.

33 It is also possible to suppose that a drug dealer might deal in some drugs and very occasionally sell other drugs on an individual basis, not as part of his drug dealing business. To revert for a moment to the analogue of the shopkeeper who carries on the business of a general store, one may imagine that the shopkeeper might sell a car every so often in circumstances which make plain that the sale was not part of his general store business. In the same way, one may imagine that a drug dealer might sell some sort of drug every so often in circumstances which reveal that the sale was not part of his drug dealing business. But of course it is less likely that a drug dealer should sell drugs otherwise than in the course of his drug dealing business than that a shopkeeper should sell a car otherwise than in the course of the business of a general store. Cars are not ordinarily thought of as part of the stock in trade of a general store; thus the probability that a sale of a car is a sale not as part of the general store business. But drugs are the stock in trade of drug dealers. Prima facie any sale of drugs is to be thought of as part of that trade.

34 A further consideration in this case is that, as the matter was put to the jury, the applicant carried on the business of dealing in cannabis and amphetamines in partnership or association with Ms Clayton and the business of dealing in heroin on his own account. Arguably, that is a further point of distinction between this case and Giretti. But it does not mean that the evidence of the applicant's involvement in the cannabis and amphetamines is less relevant to the question of whether the applicant was trafficking in heroin. Dealers in lawful trade who carry on business on own account may form syndicates with other dealers for the purpose of some of transactions. An underwriter, for example, may underwrite some risks on own account and others of larger proportions in syndicate with other underwriters. Risks underwritten by such a syndicate are incurred by each member of the syndicate jointly, as part of the business of the syndicate. But each risk incurred by the underwriter, whether on own account or jointly as a syndicate member, is also part of the business of the individual business of the underwriter. Again, in our view, it is the same with drug dealers. A drug dealer may carry on part of his dealing on own account and part in association with other dealers. When that occurs, each such part of his dealing activities is part of his trade as a drug dealer. A drug dealer who deals in some drugs on own account and in others in syndicate with other drug dealers deals in all of the drugs the subject of that trade.

35 Finally, on this aspect of the matter, it is possible to suppose that a drug dealer like other sorts of traders might conduct an isolated transaction in association with others which is so far beyond the mainstream of the dealer's day-to-day trade as to imply that the transaction should not be regarded as part of the drug dealer's business. But again, because drugs are the stock in trade of drug dealers, it is difficult to envisage a situation in which even an isolated drug transaction in association with others should not be regarded as part of the drug dealer's business. In any event, in this case the problem does not arise. The evidence is that the applicant was the moving force and dominant partner in the cannabis and amphetamine business which he set up and persuaded Ms Clayton to join, and that places it squarely at the centre of his business as a drug dealer.

36 Alternatively, but just as importantly, in case the jury were not satisfied that the applicant was carrying on a business of dealing in a range of drugs which included heroin, we think that there was ample evidence to support the conclusion that the sales the subject of counts 2 and 3 were part of a regular and repetitive trade in heroin alone.

37 Importantly, that evidence included the fact that Mr Poulopoulos was a known heroin dealer, who in the capacity of drug dealer had looked to the applicant for supply in order to make sales to under cover policemen, and that the applicant, effectively as a wholesaler, was able on short notice and without apparent effort or concern to supply Poulopoulos with heroin as and when Poulopoulos needed it to fill those orders. One is entitled to ask: who but a dealer in the substance is likely to have that sort of capacity? The evidence also included the discovery of the electronic scales in the bedroom in which the applicant was found sleeping, with traces of heroin on them, and the discovery of the other impedimenta of drug trafficking - the marquis testing kit, the multiple plastic bags, the substantial sums of cash, the many cell phones and the extraordinary number of SIM cards. Again one may say, who but a dealer in the substance keeps that sort of equipment? There was too the evidence of the applicant travelling widely through the suburbs, responding to coded message telephone calls and arranging meetings with numerous people at odd and secret locations. Who but a dealer in the substance behaves in that sort of fashion? And it included the evidence of syringes and spoons found in the shed at the rear of the Box Hill premises and the video surveillance of people coming and going from the shed. It is possible to suppose that those people were coming and going from the shed in order to inspect the gardening tools. But to say the least, it is unlikely.

38 We do not suggest that any of those pieces of evidence was sufficient in itself to satisfy a jury beyond reasonable doubt that the applicant was carrying on trade as a heroin dealer. But this case was one in which the effects of circumstantial evidence loomed large. It was therefore not so much a matter of the jury taking each item of evidence individually as one of considering the totality and deciding on its cumulative effect. As juries are so often told, one item of evidence by itself may have little effect but other items of evidence may make it more likely that that first item of evidence is true and those other items of evidence in combination are themselves more likely to be true.[6] And, as is to be expected, that is exactly the way in which the trial judge directed the jury that they should approach the matter in this case. [7]

39 Looking at the totality of the evidence, and thus the whole of the setting of the sales on 13 June 2002 and 20 June 2002, we are of the clear view that it was open to the jury to be satisfied beyond reasonable doubt that the applicant was trafficking in heroin during the period 13 June 2002 and 9 August 2002.

Appeal against sentence

40 The applicant appeals against sentence on grounds of manifest excessiveness and disparity with the sentence imposed on Mr Poulopoulos in respect of count 1 and Ms Clayton in respect of count 5.

41 As to the alleged manifest excessiveness, it is contended that the sentences imposed on each count (five years imprisonment on count 1 and two years imprisonment on count 5) and the total effective sentence of six years imprisonment with a non-parole period of four years were plainly outside the range.

42 We do not agree. In his sentencing remarks the judge noted, correctly, that while the cannabis trafficking business was conducted at street level, the heroin traffic business was conducted at another much higher level, at least two strata above street level. His Honour described it, appropriately, as amounting to a "major league" criminal operation and observed, correctly, that, because of the evils of drug trafficking, and especially heroin trafficking, and its effects on the community through deleterious consequences for users, the breeding of collateral criminal conduct and the exploitation of the community for financial gain, criminal conduct of the kind committed by the applicant is regarded as being particularly reprehensible. Hence the need for deterrence, both general and specific, as well as just punishment.

43 Furthermore, as the judge correctly observed, in this case there was a particular need for specific deterrence, because of the applicant's failure to learn from the punishment imposed on him for previous drug trafficking offences. Among other relevant offences for which he was sentenced in the past, he was convicted in 1986 on one count of possession of a drug of dependence, for which he had been sentenced to six months imprisonment, and in 1993 on two counts of trafficking in heroin for which he was sentenced to 10 years imprisonment with a non-parole period of eight years; and he committed the subject offences only 15 months after the last of those sentences expired. As the judge said, the subject offending made it clear that the applicant continued to have an attitude of disobedience to the law and, as the judge found, the applicant showed no remorse and protested his innocence to the end, and there was no prospect of rehabilitation.

44 In the circumstances, it appears to us that the sentence which his Honour imposed was anything but excessive.

45 The argument as to disparity with the sentences imposed on the other offenders may be dealt with equally briefly. Mr Poulopoulos was sentenced to 18 months imprisonment for trafficking in heroin and to three months' imprisonment for possession of cannabis. His total effective sentence was 20 months' imprisonment with a non-parole period of eight months. Mrs Poulopoulos was sentenced to 12 months' imprisonment for trafficking in heroin with a non-parole period of four months. Ms Clayton was sentenced for two counts of trafficking in a drug of dependence to 18 months to be served by way of a community based order. The applicant contends that the difference between their sentences and his gives rise to a justifiable sense of grievance. That contention is not persuasive.

46 As the judge put it:

"The thrust of the plea put on your behalf is that there should be something close to parity between your sentence and that received by one, Peter Poulopoulos. He is the person to whom on 13 June and 20 June 2002, you sold the approximate quarter ounce and a half ounce of heroin respectively. He pleaded guilty to a count of trafficking in heroin between 30 April 202 and 9 August 2002. On five occasions during that period he sold to undercover policemen a quarter ounce of half ounce of heroin and on another occasion was prepared to sell it. Two of the occasions were the sale to an undercover policeman of the quarter ounce and half ounce which he bought from you on 13 June and 20 June.

There are a number of distinguishing features between your case and that of Mr Poulopoulos. They include the following: He pleaded guilty at an early stage and the matter proceeded by way of a hand-up brief. The sentencing judge found that he had not conducted a high level or sophisticated large-scale trade in heroin. He had not received any direct monetary gain from his offending. He had offended because of his own heroin addiction. His offending was a means of feeding that addiction by retaining a small portion of the heroin traded for his own use. He was found to be remorseful. He had an unfortunate upbringing and background and suffered psychological problems. He was found to be applying himself very seriously to his rehabilitation and to re-establishing himself in life and in employment and had in fact started in employment. He had, therefore, already taken steps towards rehabilitation and was found to be genuine in those steps or attempts. As a consequence the principle of special deterrence was of less significance in his case than in yours. You were positioned higher in the hierarchy that he was. You, after all, supplied to him. Although he has numerous prior convictions for drug related offences, including trafficking, judging by the sentences imposed, the gravity of his prior offending was nowhere near the gravity of that for which Judge Dyett sentenced you... I have also considered the sentences impose on Mr Poulopoulos' wife and on Ms Clayton. In each case the distinguishing features are even greater and more numerous.

I do not think that this is a case for strict parity or even approximate parity. I must, nonetheless, bear in mind the sentences passed on those other when I come to fix the sentences in respect of you and having done so, I have moderated the sentence that would otherwise be appropriate..."

47 With respect, his Honour was plainly right.

Conclusion

48 For the reasons which we have given, the application for leave to appeal against conviction and sentence will be dismissed.

[1] Cf Re Taylor; Ex parte Natwest Australia Bank Ltd [1992] FCA 296; (1992) 37 F.C.R. 194 at 197-199, per Lockhart, J.

[2] R. v. Huynh (Unreported, N.S.W.C.C.A., 13 May 1996); R. v. Lam (2002) 135 A. Crim. R. 302.

[3] (1986) 24 A. Crim. R. 112.

[4] (1986) 24 A. Crim. R. 112 at 119, per Crockett, J. and at 121, per Gray, J.

[5] Our emphasis.

[6] Shepherd v. The Queen [1990] HCA 56; (1990) 170 C.L.R. 573 at 585; R v. Doherty [2003] VSCA 158; (2003) 6 V.R. 393 at 408[26].

[7] T.645-6.